Brown v. State

Murphy, C. J., delivered the opinion of the Court. The appellant was found guilty of assault with intent to murder in the Criminal Court of Baltimore on February 16, 1965 and was sentenced to five years imprisonment. The sentence was, however, suspended and she was placed on probation for a period of five years. On May 1, 1967, in the same court, the appellant was convicted of violating the narcotic laws and was sentenced to two years imprisonment.

The sentence was suspended and she was placed on probation until February 15, 1970. On October 19, 1967, the appellant pleaded guilty to a charge of shoplifting before Judge George Taylor in the People’s Court of Anne Arundel County and was sentenced to eighteen months imprisonment. Thereafter appellant was charged with two counts of violation of probation granted by the Criminal Court of Baltimore. By agreement, both cases were heard on December 6, 1967 by Judge Charles D. Harris, at which time the appellant’s probation officer testified that because of the shoplifting conviction in Anne Arundel County, and for no other reason, a warrant for appellant was obtained for violation of probation; and that had it not been for this conviction, appellant would have been continued on probation.

Appellant entered a timely objection and moved to strike all testimony relating to the shoplifting conviction on the ground that as she was an indigent accused not represented by counsel at that trial, such conviction could not constitutionally provide the basis for revocation of her probation. The court overruled appellant’s objection and motion, stating that as it did not have before it the records of the shoplifting conviction in Anne Arundel County, it did not know whether appellant was adequately warned of or waived her right to counsel. Appellant then testified that after she was arrested on the shoplifting charge, she endeavored unsuccessfully through her family to obtain the services of a lawyer; that she asked the ⁶²⁶ “man who arrested her did I need a lawyer” and was told by him that she did not; that she went to trial without an attorney to represent her; that the judge did not tell her the meaning or consequences of a guilty plea or the maximum sentence for the offense; and that she pleaded guilty “because I believed in a way I was guilty and in a way I wasn’t guilty.” Appellant admitted that Judge Taylor told her that he could appoint a lawyer for her, but she testified that in response to this statement of the judge, that “I didn’t tell him nothing.” After appellant testified, her counsel suggested that a continuance of the case be granted in order to clarify the issue of whether counsel had been afforded to the appellant since the only evidence in the case was appellant’s testimony that counsel had not been afforded to her. The court declined to grant a continuance, stating: “* * * I am going to act now, but without prejudice to your right to seek to reopen the proceedings if you can show, through Judge Taylor or some other reliable witness, that she was not fully apprised of her rights at that trial.

I would guess or assume it is not a court of record, and it might be somewhat difficult to show, but one thing you can do would be to get a copy of the docket entries there, which usually show whether there is a warning as to the rights. That record might very well show that after being informed of her right, she waived it. If it doesn’t show that, why the action I take will be without prejudice to your right to seek to reopen and to have the action I am going to take stricken.” Following these remarks by the court, appellant again requested a continuance “to allow me to issue a subpoena for the records and Judge Taylor to clarify this issue because I think it is a vital constitutional question.” The court again declined to grant a continuance, and after stating that it did not believe appellant’s testimony that she had not been advised of her rights, revoked her probation in both cases, concluding that: “* * * this action will be without prejudice to your right to bring in a certified copy of the docket records ⁶²⁷ of her conviction before Judge Taylor in Anne Arundel County on October 19th, 1967, or any other evidence you may wish to bring in. If it can be shown she was not advised of her rights, then you may move to have the two actions I have taken today stricken.” On these facts, appellant contends that the lower court abused its discretion in revoking her probation because the questions of whether her guilty plea to the shoplifting charge was intelligently made, and whether she was denied her constitutional right to counsel were never resolved.

As we recently observed in Wayne v. State, 4 Md. App. 424 , an indigent accused in a serious state criminal prosecution, as